Judge to rule on murder charges filed against two men

February 28, 2013

MARTINSBURG - A judge is expected to issue a ruling Monday on whether to grant a motion to dismiss felony murder charges filed against two men indicted in connection with a 2008 shooting in Berkeley County that left an innocent bystander dead.

The motion to dismiss the charges, which is based on a recent West Virginia Supreme Court ruling, was filed in December by defense attorneys representing Donzell White, 26, of Martinsburg, and Dale E. Knight, 26, who is currently incarcerated at Eastern Regional Jail.

Both men were indicted by a Berkeley County grand jury in May 2011 on one count of felony murder, first-degree robbery and conspiracy in connection with a July 20, 2008, shooting that killed Kenneth Waybright, 37, of Stephens City, Va., outside of the Brickhouse Bar and Grill on Mid-Atlantic Parkway.

Waybright was struck in the head by a stray bullet during the shooting and later died. Neither White nor Knight are accused of firing the shot that killed Waybright. Instead, they are accused of attempting to rob Elan Bell-Veney, aka "E-Bay," 26, of Martinsburg, at gunpoint, who in turn fired in self-defense, wounding Knight and White and inadvertently shooting Waybright in the process.

Bell-Veney was indicted in 2009 by a Berkeley County grand jury on charges of first-degree murder, two counts of malicious assault and three counts of wanton endangerment. Evidence later developed that Bell-Veney had been the victim of an alleged armed robbery and he fired in self-defense. He was sentenced on May 2, 2011, after pleading guilty to one count of wanton endangerment and one misdemeanor count of involuntary manslaughter in connection with the death of Waybright. White and Knight were indicted shortly thereafter on felony murder charges.

On Nov. 8, the West Virginia Supreme Court of Appeals filed an opinion denying an attempt by Hancock County Prosecuting Attorney James Davis to prevent the enforcement of an April 19 judge's order dismissing one count of felony murder from an indictment returned against James Michael Sands in an unrelated case.

The court held that when a co-perpetrator is killed by the intended victim of a burglary during the commission of a crime, the surviving co-perpetrator cannot be charged with felony murder.

On Dec. 12, 2011, Sands, a high school senior, and Dakota Givens attempted to burglarize a convenience store in Weirton. The store owner's son shot and killed Givens during the attempted burglary, for which Sands was indicted for felony murder. The Supreme Court agreed with the lower court's order dismissing the felony murder charge from Sands' indictment.

Attorneys for White and Knight argue that, in applying the rationale of the Supreme Court's recent ruling, the court has provided the framework whereby the motion to dismiss the murder charges filed against their clients must be granted.

"Akin to Davis, the 'victim' E-Bay was the shooter who killed the decedent. Via the aforementioned analysis, the West Virginia Supreme Court of Appeals has adopted the majority position and further adopted the legal axiom that 'when a killing is not committed by a robber or his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery,'" the defense motion reads.

The defense argues there is no dispute that Waybright was killed by Bell-Veney and there has been no suggestion that Bell-Veney was an accomplice to Knight or White. They say the recent Supreme Court ruling found that the state's statute for felony murder is not "one size fits all" and that the statute requires more than simply a criminal act and a death.

Berkeley County Prosecutor Pamela Games-Neely filed a response opposing the motion to dismiss the felony murder charges on Dec. 28.

The response states that under the felony murder doctrine, the elements which the state is required to prove to obtain a conviction are the commission of one or more enumerated felonies; the defendant's participation in such commission or attempt; and the death of the victim as a result of injuries received during the course of such commission or attempt.

The Supreme Court has also held that the crime of felony murder doesn't require proof of the elements of malice, premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs accidentally during the commission of or the attempted commission of an enumerated felony, one of which is attempted robbery.

Games-Neely argues the Sands case, which involved the death of a co-perpetrator of a burglary, is much different from the case involving Knight and White.

"Mr. Waybright was not a co-conspirator but was an innocent bystander who died during the the course of the robbery attempted by the defendants," her response to the motion to dismiss the charges reads.

She argues the Supreme Court's ruling in the Sands case was directed solely to the application of the felony murder doctrine to the death of a co-conspirator killed by the intended victim.

"The defendants cite no legal authority that holds that the felony murder doctrine does not apply to a case such as theirs, where an innocent bystander is killed when a victim resisting their armed robbery attempt errantly shot and killed the innocent bystander. The defendants attempted to rob Mr. Bell-Veney at gunpoint; Mr. Bell-Veney resisted with his own gun and Mr. Waybright died as a result of the injuries he sustained during the defendants' attempt to commit the robbery. Those are the elements necessary to prove felony murder," Games-Neely's response reads.

A status hearing was held earlier this week in Berkeley County Circuit Court before West Virginia 23rd Judicial Circuit Judge Gray Silver III to discuss the issue, but a ruling was not made at that time. Both sides in the case have indicated they will appeal the judge's ruling to the West Virginia Supreme Court if it is not in their favor.